An institution’s trade secrets generally include confidential information with commercial value. Trade secret protection may be available by common law, under state laws, or under federal law. In addition, there may be both civil and criminal causes of action for the misappropriation and theft of trade secrets.
For instance, the Defend Trade Secrets Act of 2016 (DTSA) is a United States federal law that allows an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated through “improper means.” Such “improper means” can include “theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means.”
Trade secrets can be used by institutions to protect numerous types of information. For instance, under the DTSA, protectable trade secrets include information that “derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” Furthermore, such information can include “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.”
Moreover, trade secrets can have an indefinite life, so long as they are kept secret and confidential. For instance, under the DTSA, trade secret protection requires the owner of the trade secret to take “reasonable measures to keep such information secret.”
An institution’s trade secrets can be its most valuable and prolonged assets. However, institutions must take numerous steps in order to maintain the enforceability of their trade secrets. Such steps include: (1) identifying the trade secrets; and (2) taking “reasonable measures” to maintain the secrecy of the trade secrets.